High Court rules that farmers “make” seeds

Today, the Supreme Court of the United States issued their ruling on the Bowman v Monsanto case, siding unanimously in favor of Monsanto. The court rejected Bowman’s arguments that Monsanto’s patent “exhausted” when he purchased seeds from a grain elevator to plant on his farm, and affirmed that the act of growing a crop of seeds is “making” those seeds, and are still covered under patent law. It was a narrow ruling that applied only to seed patents, but it could have long-term implications for other self-replicating technologies.

Vernon Bowman is a farmer in Indiana, who grew genetically engineered Roundup-Ready soybeans on his farm, and signed license agreements not to save and replant those seeds. However, he wanted to grow a second, late-season crop of beans, which were too high-risk to justify paying the licensing fees for the seeds, so he devised a plan to work around the license issue. He bought generic “commodity” beans from a grain elevator, which were destined for consumption, and planted his second crop from these. He even sprayed these fields with Glyphosate herbicide to kill the weeds and all non-Roundup Ready plants, thus specifically selecting for the trait, and he did this for 8 years on his farm before this practice was discovered.

When Monsanto found out about this, they sued Bowman for patent infringement, and won through two levels of the court system. He appealed to the Supreme Court, which elected to take up the case. Both sides presented their arguments on January 19 this year, amid a flurry of media activity and speculation. The case attracted wider attention outside the agricultural community because a ruling on the case could have far-reaching implications for the development of other forms of self-replicating technologies.

Patent Exhaustion is the legal concept that “the initial authorized sale of a patented item terminates all patent rights to that item.” Buying the first batch of soybean seeds for planting would “exhaust” the patent, and allow the buyer the right to use the soybeans produced from that crop for purposes such as processing, feeding to animals, selling to a grain elevator, etc. Bowman argued in January that patent exhaustion also applied to replanting the soybeans to grow another crop, hinging on the use of the term “make.”

Patent Exhaustion does not apply to the act of making copies of an invention, which would still be covered under patent law and require permission of the patent holder. So Bowman’s legal argument was that by growing a crop from seeds the plant is growing copies of the invention, but the farmer is not “making” them. In legal briefsand public comments, Bowman and his legal team argued that the act of farming itself was almost an accidental enterprise. Farmers are instead actively keeping seeds from sprouting as they would naturally do, and by planting them are allowing nature to take its course.

Bowman’s use of commodity seeds for planting has nothing in common with “reconstruction.” No parts were worn out and replaced; the seeds were simply used. In the context of patented seeds, use as contemplated by all parties to the first sale may simply result in the creation of a new item.
(…)
The seeds at issue here will self-replicate or “sprout” unless stored in a controlled manner to prevent this natural occurrence. Humans can (and most often do) assist in the process of self-replication. For instance, Bowman planted Roundup Ready® seeds and treated them with glyphosate. This activity led in part to the creation of new soybeans having the patented Roundup Ready® trait. But it was the planted soybean, not Bowman, that “physically connected” all elements of the claimed invention into an “operable whole.”

In the ruling written by Justice Kagan, this argument was soundly rejected.

Justice Elena Kagan

The exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied). And that is precisely what Bowman did. He took the soybeans he purchased home; planted them in his fields at the time he thought best; applied glyphosate to kill weeds (as well as any soy plants lacking the Roundup Ready trait); and finally harvested more (many more) beans than he started with. That is how “to ‘make’ a new product,” to use Bowman’s words, when the original product is a seed. (emphasis added)

To drive the point home, they added,

Still, Bowman has another seeds-are-special argument: that soybeans naturally “self-replicate or ‘sprout’ unless stored in a controlled manner,” and thus “it was the planted soybean, not Bowman” himself, that made replicas of Monsanto’s patented invention. “[F]armers, when they plant seeds, they don’t exercise any control. . . over their crop” or “over the creative process”. But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops.

In other words, the Supreme Court affirmed that which would seem to be patently obvious: Farmers actively create or make seeds when they grow crops. It was clearly stated in his court brief just how involved Bowman was in the process of growing these crops, and this fact was not missed by the nine justices, who ruled 9 to 0 against him. The very readable rulingspent considerable effort to outline the reasons why exhausting a patent after only one generation of growing a crop from genetically engiineered seeds would effectively undermine the entire patent concept, and reduce the patent monopoly from twenty years to less than one. Their reasoning was motivated by the directives of Congress on maintaining reliable incentives for the invention of new and useful technologies.

Monsanto’s claim that it has rights over a self-replicating natural product should raise concern.(Emphasis added)

An unnatural position for them to take.

Monsanto was claiming rights not over any seed, but over a genetically engineered seed, so Kimbrell was describing genetically engineered seeds as natural products. The Center for Food Safety, which filed a brief in support of Bowman, has long argued that genetically engineered crops are not natural, so this apparent change in position brought about by this argument was significant. If the seeds are not natural, then there is no precedent set that the “natural and foreseeable use” of them is for replanting. Therefore, contrary to previous statements, they needed to argue in favor of the naturalness of growing second-generation genetically engineered seeds. The term “natural” was used widely in the brief filed by CFS.

Commentators noticed that planting commodity beans intended for processing was deviating from the foreseeable use of those beans. Moreover, as farmer Brian Scott pointed out, planting generic commodity soybeans is not good agronomic practice. Soybeans come in different maturity types bred for different regions, and will reach harvest at different dates after planting. By planting a mixture of maturity types, which are mixed together at the grain elevator, the crop will be inconsistent in maturity during growth and harvesting.

The High Court also addressed the “natural use” argument.

Bowman himself stands in a peculiarly poor position to assert such a claim. As noted earlier, the commodity soybeans he purchased were intended not for planting, but for consumption. Indeed, Bowman conceded in deposition testimony that he knew of no other farmer who employed beans bought from a grain elevator to grow a new crop. So a non-replicating use of the commodity beans at issue here was not just available, but standard fare.

The case was expected to have far-reaching implications for other self-replicating technologies, however, the court explicitly stayed away from such a broad ruling.

Our holding today is limited—addressing the situation before us, rather than every one involving a self replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse.

Nevertheless, the reasoning presented behind today’s ruling may have long term effects on the development of other self-replicating technologies, suggesting that as these technologies develop into maturity that they, too, may be protected against unlicensed reproduction.

RepRap: A project to develop a self-replicating 3d printer. Such technologies are sure to be affected by cases like Bowman v Monsanto

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Karl earned his Ph.D. in Plant Breeding and Plant Genetics at UW-Madison, with a minor in Life Science Communication. His dissertation was on both the genetics of sweet corn and plant genetics outreach. He currently works as a public research geneticist in Madison, WI. His favorite produce might just be squash.

15 comments to High Court rules that farmers “make” seeds

I was reading a little about the other kinds of self-replicating technologies, and they are all a little different. Software that copies itself onto a computer is replicating itself, for instance. I imagine that SCOTUS did not want to make a ruling that would have unforeseen consequences for those other kinds of technologies.

I was on the train when I saw the first tweet on this, and then went out of contact for the next hour. I couldn’t see the details and I was aching to see the decision.

I wasn’t surprised at SCOTUS, though. I continue to be surprised at how keen the foodies are to have unrestricted GMO and glyphosate use. And that a guy who loves RoundUp is their hero. It cracks me up.

I have perused some documents – admittedly not all, but it makes no difference. The impression one can get from the account of facts and the arguments is that the case may well have been “fabricated”, at least to some extent.

It is for instance remarkable that the monetary award at issue is a modest US$ 85,000, being based on a “reasonable royalty of acres planted with commodity soybeans”. Bowman and Monsanto have been corresponding since May 1999. Yet it is only “sometime in 2006” that Monsanto requested an opportunity to investigate Bowman’s planting activities, which the latter readily accepted. And Monsanto only sued in October 2007.

The case proceeded to the Supreme Court rather quietly, without the furore that farmers sued by a seed company – particularly the one which many love to hate – may instigate and entertain.

There were pretty good reasons for both parties to do so, namely to seek legal clarity from the highest instance.

MaryM may therefore continue to be surprised at how keen the foodies are… and at how they have made “a guy who loves RoundUp” as their their hero.

And we can all be even more surprised at some of the arguments brought to the Supreme Court by some of the “anti” movement.

Knowledge Ecology International (read: Jamie Love’s small enterprise) argued, like many others, that “contract law provides the more appropriate mechanism to protect investments in self-replicating technology while also safeguarding user rights”.

In a footnote (on page 13), they state that Monsanto could also “stack its genetically modified seed with a ‘terminator’ gene”:

Seeds were bred by farmes since bronze and iron time, the medieval and nearly the whole history of mankind–farmers bred all the crops today used themselves. Nowadays it is a privilage that scientists , biologists and breeders help the farmers. The advantage for farmers to use commercial seeds is a matter of advertising and publicity and not of courts. If farmes use seeds they bred themselves –it is the right of the farmers. Monsanto had done crimes likes agent orange, pcb , dioxine, terminator seeds, drive farmes to suicide,
making farmers dependent on monsanto and so on..all here can google monsanto and crimes or read the wikipedia article on monsanto. I feel no compassion to monsanto in this case of court judgement. I signed a petition in Germany to allow hobby gardeners to grow own seeds.Monsanto wanted to forbid them to grow own seeds. I grew seeds myself as hobby gardener as I had the time for this. To grow own seeds is nearly a human right, because growings seeds helps (and helped) farmers to survive in times of need .

Actually it was Monsanto who added the glyphosate tolerance trait to the seed, not earlier generations of farmers. And it is exactly this trait that Vernon Bowman wants. Monsanto cannot forbid farmers to use seeds that do not contain the trait.

Ms. Lehmann stated in her first comment that “Monsanto wanted to forbid them [the hobby gardeners] to grow own seeds”.

I challenged her to cite the factual and legal background. I am grateful to her for her reply.

As was to be expected, she has been unable to provide relevant material. It is not her fault except perhaps that she readily accepted the dysinformation that is common in Europe.

There is no way, in Europe, for a seed company – small or large, not even Monsanto – to prevent a hobby gardener to produce and use her own seed. This is so under the intellectual property laws, the seed laws and competition law.

To put it short:

1. Rights under both the patent laws (see for instance Article 11 of the German Patent Law) and the plant variety protection laws (see for instance Article 15 of the UPOV Convention) do not extend to acts done privately and for non-commercial purposes (in German for Frau Lehmann: “Handlungen, die im privaten Bereich zu nichtgewerblichen Zwecken vorgenommen werden”). Such acts are typically those performed by hobby gardeners.

2. The seed laws apply to commercial activities.

3. Competition law does not allow contract clauses that run against the law. Any clause that would purport to forbid the production and use of own seed – or even farm-saved seed in case where the law authorizes such seed – would be unenforceable and declared null and void.

Ms. Lehman has signed a petition in relation to the European Union’s work to replace a host of directives and regulations with a single Regulation on the production and making available on the market of plant reproductive material (plant reproductive material law) and to update the legislation.

Neither the petition nor the background material is dated, but it seems that it was launched shortly before the release of the EU Regulation proposal, at a time when its content was largely known. The petition is based on two “tricks”.

1 Outright or subtle dysinformation.

The website cited by Ms. Lehmann leads to a “Five minutes info’ window”. By way of example, the first sentence reads:

“The EU Commission wants to provide in a central European Seed Regulation that only such seed may be marketed which have gone through an expensive official authorization procedure and which meet the stringent norms of the seed industry.”

The truth is that the proposal extends the existing exceptions for varieties and seeds that do not have to undergo official variety testing and registration, and seed certification. Material marketed in small quantities by non-professionals or by micro-enterprises (‘niche market material’) will also be exempted from the registration obligation. And there will be a special regime for ‘heterogeneous material’.

2. A “hurray, we made it”

The most grotesque example is the paragraph on exceptions for niche varieties:

“New provisions in the Regulation show that the protest has already achieved something: private persons and small businesses with less than ten employees and two million Euros turnover may also market ‘small quantities’ of seed of niche varieties without registration.”

Fact is, this system was already on the table in the consultations, in 2009 (see scenario 4 of the undated Options & analysis paper).

Ms. Lehmann has also provided a link to the Süddeutsche Zeitung. There is an earlier article:

In summary, there has been an uproar in the second half of April on the basis of extraordinary assertions, including from AgMin Ilse Aigner. It is frankly unbelievable that she should reject the Commission plans before even knowing their detail!

It seems to me that, based on existing laws and precedent, the Supreme Court had no choice but to rule as they did. The fact that the justices ruled unanimously, despite their very strong political and ideological differences, indicates to me that there was no conspiracy or shady dealings as some have suggested. Simply, it’s 9 very different people all interpreting the law the same way. The only strange thing is that they even bothered to take the case – they must have really wanted to make a clear statement to uphold the previous court’s ruling.

Justice Kagan, who is arguably the most liberal member of the court, put it very clearly in the court’s opinion (page 9, slightly paraphrased):

Bowman has a seeds-are-special argument: that soybeans naturally “self-replicate or ‘sprout’ unless stored in a controlled manner,” and thus “it was the planted soybean, not Bowman” himself, that made replicas of themselves. But the blame-the-bean defense is tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops.

But she is clear that this does not hold for all possible inventions (page 10), indeed this may have been why the court decided to hear the case – so they could draw the lines on where replication begins and ends in patent law.

In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose. We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances. In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct.